On July 14, 2016, a three-member panel appointed by the National Labor Relations Board (“NLRB”) reversed an Administrative Law Judge decision in favor of the employee. The Panel found that a complaining employee who was told he was “fired” in a meeting and subsequently told he was not fired after the meeting on the same day, was in fact discharged for purposes of the Act. Thus, the Panel found the employer violated National Labor Relations Act (the “Act”) Section 8(a)(1).
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Relevant Facts of the Case:
Respondent asphalt paving company based in Arizona was owned and operated by Robert Bates. In April 2014, Bates hired Robert Padilla as a supervisor. Padilla oversaw a paving job at the University of Arizona’s Tech Park. Around that same time and according to the findings set forth in the decision, employees, including Marana and others, experienced “abusive treatment” from Padilla, which included yelling, cursing, and name-calling like “stupid Mexicans” and “f***ing wetbacks.”
On September 19, Padilla engaged in a verbal confrontation with the crew at the Tech Park paving job, and several employees, including Marana, sought an impromptu meeting with Bates to address Padilla’s behavior. Bates promised to talk to Padilla, but said the employees looked like, “little girls complaining.” Subsequently, Bates fired one of the employees who participated in that meeting – which the Panel found to be “protected concerted activity.”
On September 23, Bates held another meeting with the crew. In that meeting, Bates criticized the poor workmanship of Marana and others. Marana responded by shifting blame to Padilla for yelling and cursing at him. In reply, Bates told Marana, “You mother f***er, get the f*** out of here, out of my company right now. You’re fired. Get out of here. Go. Go. Get the f*** out of here. I don’t want you in here. Go.” Interestingly, Marana did not leave the meeting. After the meeting concluded, Bates told Marana that he was not fired, and Marana resumed work the next day.
The Panel’s Analysis: Cannot Reverse “Capital Punishment” Discharge to Avoid Board Sanctions
The Panel found that Bates statement to Marana that he was “fired” was unambiguous, and satisfied the General Counsel’s burden of proving an adverse employment action. The facts that Marana remained in the September 23 meeting, was told after the meeting that he was not fired, and suffered no actual harm and returned to work did not persuade the Panel that no “unlawful discharge” took place. Instead, the Panel found that these facts evidenced a reversal of the discharge. In a colorful analogy, the Panel explained:
“Discharge is the “capital punishment” of employment. An employer cannot avoid Board sanction simply by reversing the discharge before an employee suffers financial costs. The message has been sent that the employer is willing to take this extreme action and the employee victim is likely to understand that a “change of heart” may not come so quickly, if at all, if he again engages in protected concerted activity. In this particular case, that message is underscored by the contemporaneous unlawful discharge of [another employee] a day earlier for voicing the same protected concerted protests as Marana about supervision and the problems at the Tech Park jobsite. Having found that Marana was discharged and that the discharge was a direct response to his concerted protected activity, we conclude that the Respondent discharged Marana in violation of Section 8(a)(1).7.”
Employers Take Note: Words Matter
Obviously, words matter. In the modern day employment environment, it takes very little to run into issues with the Act and the NLRB. So the very bad facts found here concerning the employer’s name-calling and profanity-laced tirades probably did not help create a sympathetic ear with the Panel. But more to the point, the three paragraph analysis to support the Panel’s finding that Marana was in fact discharged is striking in that the Panel took a strict interpretation of both the phrase “you’re fired.” The Panel did not discuss other circumstances surrounding the September 23 meeting, such as the highly emotional nature of the meeting. Furthermore, the Panel did not specify any temporal limitations. Marana was told he was not fired shortly after the meeting, on the very same day. Would the outcome differ if an employer in a heated meeting with an employee stated “you’re fired” and then immediately, in the same meeting, took it back? In reading the decision, it would seem that a discharge occurs at the moment the “message has been sent.”
 This article is intended to summarize relevant parts of the decision. To review the decision in full, please visit: http://www.managementmemo.com/files/2016/07/Board-Decision.pdf